And No Religion Too: Fourth Circuit Fails To Find Religious Impeachment Constitutes Plain Error

Federal Rule of Evidence 610 provides that

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

At the start of the government's cross-examination of a criminal defendant, the following exchange takes place:

The Government: Mr. Munir, you swore on the Bible. Are you a Christian?

Defendant: I'm Islam, but I speak a lot of the Bible too.

After the defendant is convicted, he appeals, claiming, inter alia, that this question violated Federal Rule of Evidence 610, and the government responds that the question was designed to ensure that the defendant took his oath seriously, not to impeach his credibility per se. How should the court rule? According to the recent opinion of the Fourth Circuit in United States v. Anwari, 2010 WL 3262224 (4th Cir. 2010), the court should rule in favor of the government, at least if the defendant did not object to the question.

In Anwari, the facts were as stated above, with the defendant failing to object to the government's question as required by Federal Rule of Evidence 103(a)(2). This meant that the Fourth Circuit could only reverse the defendant's conviction for plain error under Federal Rule of Evidence 103(d). And this was something that the court could not do, despite noting that the Second Circuit had deemed similar interrogation improper in its opinion in United States v. Kalaydjian, 784 F.2d 53 (2d Cir.1986).

The Second Circuit acknowledged that the defendant might have been successful on appeal if he objected and preserved the issue for appellate review but found that

because the Government only mentioned Anwari's religion once, and that because there is no Fourth Circuit case on point, [the defendant] cannot demonstrate that allowing the question was plainly erroneous. Moreover, again, the evidence against [the defendant] was ample, and the Government's isolated question, even if we assume it to have been erroneous, did not rise to the level of being so prejudicial as to affect the integrity of the trial.

-CM